ML20236P027
| ML20236P027 | |
| Person / Time | |
|---|---|
| Site: | Vermont Yankee File:NorthStar Vermont Yankee icon.png |
| Issue date: | 08/07/1987 |
| From: | Dignan T ROPES & GRAY, VERMONT YANKEE NUCLEAR POWER CORP. |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#387-4200 ALAB-869, OLA, NUDOCS 8708120192 | |
| Download: ML20236P027 (11) | |
Text
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f5'U.h Hi DCCFETED mup;e Dated: August 7,'1987
'87 AUG 10 All :12
-UNITED STATES OF AMERICA
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before the NUCLEAR REGULATORY COMMISSION
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In the Matter of
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VERMONT YANKEE NUCLEAR
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Docket No. 50-271-OLA POWER CORPORATION
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(Spent Fuel Pool
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Amendment)
(Vermont Yankee Nuclear
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Power' Station)
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APPLICANT'S PETITION FOR REVIEW OF ALAB-869 The Applicant, Vermont Yankee Nuclear Power Corporation (Vermont Yankee), pursuant to 10 CFR S 2.758, and otherwise according to lawl hereby petitions the Commission for review 1
of the decision of.the Appeal Board rendered on July 21, 1987, and served on July 22, 1987, in Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear Power Station),
ALAB-869, 26 NRC (July 21, 1987).
As required by 10 CFR 5 2.786(b) (2) the following information is set forth:
(i)
A concise summary of the l
decision or action of which l
review is sought l
Vermont Yankee Nuclear Power Station (VYNPS) received its operating license in 1972.
Under the terms of that 1 Florida Power & Licht Co. (St. Lucie Plant, Unit No.
2, CLI-78-12, 7 NRC 939 (1978).
8708120192 B70907 50y PDR ADOCK 05000272 G
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license VYNPS was authorized to store up to 600 spent fuel assemblies in its spent fuel pool.
In 1978, after the holding of adjudicatory proceedings before an Atomic Safety and Licensing Board, VYNPS was authorized to rerack the spent fuel pool and store up to 2,000 fuel assemblies therein.2 At the time that the amendment was granted, the Staff issued a Safety Evaluation Report which specifically approved, and made patently clear the need for, the use of the residual heat removal system (RHR) to cool the spent fuel pool under certain circumstances.3 Even though the expected utilization of the RHR system for spent fuel pool cooling was clearly available for litigation in the 1978 rerack proceeding to which the New England Coalition on Nuclear Pollution (NECNP) was a full party, no one raised any contention with respect to the augmentation of spent fuel pool cooling by use of the l
RHR.
On April 25, 1986, Vermont Yankee filed an application for an amendment to the VYNPS operating license to permit a 2 See Vermont Yankta Nuclear Power Corporation (Vermont Yankee Nuclear Power Station), LBP-77-54, 6 NRC 436 (1977),
affirmed, ALAB-455, 7 NRC 41 (1978).
3 See Safety Evaluation by the Office of Nuclear Reactor Reculation Relatina to a Modification to the Soent Fuel Pool for Facility Operatina License No. DPR-28 Vermont Yankee Nuclear Power Corporation. Vermont Nuclear Power Station Docket No. 50-271 admitted into evidence Post Tr. 142 (June j
21, 1977) at 4-5; Eupplement No. 1 to the above-cited SER I
appearing Post Ir. 142 (June 21, 1977) at 1-2 as corrected l
II. 135 (June 21, 1977).
The relevant portions of these j
documents were all quoted at pp. 15-18 of Applicant's Brief l
to the Appeal Board.
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1 second'rerack of the VYNPS spent fuel pool in order to raise the capacity from 2,000 to 2,870 fuel assemblies.
On June p
18, 1986, a notice of an opportunity for hearing on the application was published.
No request was' filed.
Subsequently, the Staff determined that it had erred'in the composition of the notice by failing to include therein a reference to the so-called hybrid hearing procedures as required by 10 CFR S 2.1107.
As a result a new notice, providing an additional 30-day window for intervention under the. hybrid hearing procedures, was published on December 31, 1986.
Three requests, including one from NECNP, were filed.
One of the contentions filed-by NECNP, denominated No.
3, was the following:
"The spent fuel pool expansion amendment should be denied because it violates the single failure criterion."
The Licensing Board, after holding oral argument upon the requests for hearing filed by NECNP and two other putative interveners, The Commonwealth of Massachusetts and
-the State of Vermont, issued a memorandum and order, Vermont Yankee Nuclear Power Corporation (Vermont Yankee Nuclear I
Power Station), LBP-87-17, 25 NRC (May 26, 1987).
Therein, inter alin, the Licensing Board totally rewrote NECNP's contention No. 3 and, after itself doing the necessary research to supply what it decided was sufficient basis therefore, characterized the rewrite as " derived" from 3
l NECNP No. 3 and admitted it as contention 1 in the followirag form:_
1 "The spent fuel pool expansion amendment i
should be denied because, through the l
necessity to use one train of the a
J reactor's residual heat removal system (RHR)- in addition to the spent fuel cooling system in order to maintain the pool water within the regulatory limits of 140' F, the single failure criterion as set forth in the General Design Criteria, and particularly Criterion 44, will be violated.
The Applicant has not established that its proposed method of
. pent fuel pool cooling ensures that both the fuel pool cooling system and the reactor cooling system are single failure proof."
LBP-87-17 Slip Op. at 44.
The Licensing Board also went on to research, rewrite and supply basis for two other contentions which it characterized as " derived" from other contentions put forth by the-three requestors.
LBP-87-17, passim.
The Applicant appealed the Licensing Board decision pursuant to 10-CFR S 2.714a.
In its appeal, the Applicant, inter alia, made the following arguments:
With respect to all admitted contentions the Applicant argued in Section II of its Brief that the Licensing Board had overreached its proper role by, in essence, researching and rewriting new contentions for the interveners; that, even assuming the Licensing Board had some discretion to recast contentions, in l
these circumstances (including the fact that no one intervened on the basis of the first Federal Register notice), what had been done amounted to an abuse of discretion; and that the Licensing Board's actions 4
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constituted a violation of the spirit and letter of the Commission's sua soonte rules.
Ann. Br. to Aooeal Board at 28-30.
With respect to the Licensing Board's Contention 1 in particular, the Applicant argued:
(1) that it was barred by the doctrine of repose, Ano. Br. to Aeneal Board at 14-18, (2) that the single failure criterion did not apply to spent fuel pools, 14. at 19-20, and (3) that insofar as the rewritten contention included within it new issues not raised in the intervenor's contention (particularly the issue of the temperature below which the spent fuel pool must be kept) it, I
in particular (as opposed to the general argument raised as to all contentions in Part II of the brief), violated the sua sponte rules id. at 20-21.
The Staff filed a brief which took the position that all of the contentions admitted by the Licensing Board except Contention 1 should be dismissed.
With respect to Contention 1, based upon an affidavit filed with the Appeal Board,4 the Staff changed the position it has taken below where it had opposed the original NECNP Contention No.
3.
In ALAB-869, the Appeal Board dismissed all of the contentions save Licensing Board Contention 1.
With respect to that contention the Appeal Board did modify it to change 4 The Appeal board relied, in part, upon the Staff affidavit in reaching its decision on the contention despite the existence of authority to the effect that 10 CFR S 2.714a appeals must be decided upon the record below, j
supplementation not being permitted.
Houston Liahtina &
Power Co. (Allens Creek Nuclear Generating Station, Unit 1),
ALAB-582, 11 NRC 239, 242 (1980).
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the reference to the limiting temperature back to the figure th'at1hadiheretofore applied.
In reaching this result, the Appeal Board. rejected the Applicant's arguments that Contention 1 was barred by the doctrines of repose, ALAB-869 at-5-8;. rejected the argument that the single failure criterion did not apply to spent fuel pools, ALAP-869 at 9-12;.and totally ignored the Applicant's argument that the
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entire Licensing Board decision, including the portion pertaining to" Contention 1 represented a wholesale departure i
-from' required neutrality, constituted an abuse of discretion, if indeed any existed at all to rewrite contentions in this setting, and1 violated the gun sonnte rules of the Commission.
'(ii) A statement (including record citation) where the matters of fact or law raised in the L
Petition for Review were l-previously raised before the Atomic Safety and Licensing-Appeal Board and if they were not raised why they could not have been raised.
j The decision of the Appeal ~ Board was made on briefs; no oral argument was held.
In Section (i) hereof the Applicant has pointed out the places in its brief where the various relevant arguments were made.
The general argument as to the impropriety of the Licensing Board's action in researching, rewriting excusing deficiencies and manufacturing contentions for the interveners was set out in Section II of the Applicant's Brief (pp. 28-30).
With respect to contention 1, the doctrine of repose argument appears at pp. 14-18 and the 6
a I
a
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' 4
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single failure criterion argument was set out at pp. 19-20.
(iii)
A concise statement why in the Petitioner's view the decision or action is erroneous 1
The decision is erroneous in three respects.
First, it gives legitimacy to the action of the Licensing Board in these extraordinary circumstances of recasting, rewriting, researching and manufacturing for an intervenor whose original filing did not present a litigable. contention, a contention which'will result in the holding of a proceeding where otherwise none would be necessary.
Second, it wrongly decided that an issue available for litigation in a prior fully adjudicated proceeding, but not litigated, may be
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raised in a subsequent proceeding by the same party which
" passed" on it earlier.5 Third, it wrongly decided the 5 The Appeal Board seeks to avoid the force of the argument by saying, as did-the Licensing Board, that all that I
was available for litigation was an infrequent use of RHR augmentation rather than the more " routine" use of it as the Appeal Board' deems the instant application to involve.
The distinction is without real substance.
The substantive safety issue,-if any, is whether RHR should be relied upon at all if the single failure criterion is applicable to spent fuel pools.
How many times one is allowed to use it is at most a sub-issue, if, indeed, it is an issue at all.
Neither the Appeal Board nor any party, including the Staff, has cited a case where the issue of whether a certain procedure was allowed was treated separately and apart from how many times it could be invoked.
NRC licensing always contemplates that when a certain procedure is deemed acceptable, the frequency of its use lies within the discretion of the operator of the plant.
The bifurcation of the issue of acceptability and frequency is, indeed, a novel concept in NRC jurisprudence.
The issue of frequency should not be deemed anything more than a subset of the issue of allowance and, as such, deemed barred under the doctrine of repose on the authority of Carolina Power and Licht Co. (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525,.537-38 and n.37 (1986).
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question of whether the single failure criterion applies to 1
. 1 spent fuel pools.
l (iv) A concise statement of why Commission review should be exercised I
The Commission should settle once and for all the question of how far.a Licensing Board may go to generate a proceeding when the initial pleadings are not sufficient en their own.
This agency exists to assure safe operation of nuclear plants and to resolve substantial safety questions; its functions do not include assuring full employment for the bar.
Second, the issue of whether or not an intervenor can be allowed to pass up an issue in an operating license or amendment proceeding once and then obtain a hearing on the same issue in a subsequent proceeding should be settled.
A decision on a particular design or safety question should be viewed as in IeE and good against the world absent a change l
of factual circumstances; but even if the Commission is i
unwilling to go that far, at least those who were a party to i
the prior proceeding where it was available for litigation should be barred.
Third, the commission should settle the issue of the reach of the single failure criterion with respect to Spent Fuel Pools.6 6In connection with this question of the applicability of the single failure criterion to spent fuel pools, it is interesting to note that on at least one occasion in the past the Staff he.s taken the position that the single failure criterion does not apply.
See Commonwealth Edision Company (Zion Station, Units 1 and 2), LBP-80-7, 11 NRC 245, 264 i
(1980).
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O
t CONCIESION -
The Petition for. Review'for review should be granted.
Respectfully submitted, Thoias G. Di n, Jr.
Kathryn A.
11eck Ropes & Gray z-225-Franklin Street Bonton, MA 02110-(617) 423-6100 f&unsel for the Aeolicant I
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gr,t
'87 AUG 10 All :12 CERTIFICATE OF SERVICE GOCM ;
I, Thomas G. Dignan, Jr.,
hereby certify that on pq
" EJ August '7,1987, I made' service of the within document in "
accordance with the rules of the Commission by mailing a copy.thereof postage prepaid to the following:
Lando.W. Zech, Jr., Chairman Thomas M. Roberts
- Nuclear. Regulatory' Commission Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Kenneth M.
Carr Frederick M. Bernthal Nuclear Regulatory Commission. Nuclear Regulatory Commission Washington, DC-20555 Washington, DC -20555 Charles Bechhoefer, Esquire, Christine N. Kohl, Chairman Chairman Administrative Judge Administrative Judge Atomic Safety and Licensing
-Atomic' Safety and Licensing Appeal Panel' Board Panel U.S. Nuclear Regulatory Commission-U.S. Nuclear Regulatory Washington,.DC 20555 Commission Washington, DC 20555 y
Mr. Glenn O.
Bright Gary J.
Edles Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic-Safety and Licensing Board Panel Appeal Panel U.S.7 Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission
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Washington, DC 20555 Washington, DC 20555 Mr. James H. Carpenter Howard A. Wilber Administrative Judge Administrative Judge Atomic Safety and Licensing Atomic Safety and Licensing
~ Board Panel Appeal Panel U.S. Nuclear Regulatory U.S.
Nuclear Regulatory Commission I
Commission Washington, DC 20555 l
Washington,-DC 20055 Atomic Safety and Licensing Ann P.
Hodgdon, Esquire g
E Board Panel Office of the General Counsel U.S. Nuclear Regulatory U.S. Nuclear Regulatory Commission Commission Washington, IX:
20555 Washington, DC 20555 1
e
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Atomic Safety and Licensing George B. Dean, Esquire Appeal Panel.
Assistant Attorney General U.S. Nuclear Regulatory Department of the Attorney General Commission One Ashburton Place Washington, DC 20555 Boston, MA 02108 Geoffrey M. Huntington, Esquire Office of the Attorney General Environmental Protection Bureau State House Annex 25 Capitol Street Concord, NH 03301-6397 David J. Mullet, Esquire Vermont Department of Public Service 120 State Street Montpelier, VT 05602 Ellyn R.
Weiss, Esquire Harmon & Weiss Suite 430 2001 S Street, N.W.
Washington, DC 20009 Thomas G'. Dig M Jr.
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